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War Powers

Last night, MPs voted overwhelmingly in favour of military action in Libya.

Last night, MPs voted overwhelmingly in favour of military action in Libya. Ever since the Iraq war there has been a long running debate about how and when MPs should be involved in approving the commitment of armed forces.

Sending armed forces into military action is one of the heaviest responsibilities faced by a Prime Minister.  But it is one Government can take under prerogative powers without the consent of Parliament.  Ever since the Iraq war there has been a long running debate about how and when MPs should be involved in approving the commitment of armed forces. David Cameron has acknowledged these arguments in his approach to the military action in Libya. There are three broad issues: 

  • when MPs should be involved; 
  • what powers they should be given; 
  • what legal and other information they should be provided.

After pressure from Jack Straw, then Foreign Secretary, and the late Robin Cook, Leader of the Commons until the eve of the fighting, MPs did vote on two substantive motions in February and March 2003. Mr Straw has always regarded this as a precedent for future military action. Since 2003, various Commons and Lords committees have produced a variety of statutory and purely parliamentary proposals for approving military action. The Blair Government, and the defence chiefs, were hostile to any move away from previous informal arrangements as being too restrictive of necessary military discretion. However, after 2007, the Brown administration shifted to backing a House of Commons resolution setting out the processes which Parliament should follow to approve any commitment to armed conflict. These would give MPs a say, while allowing the government discretion in view of the various types of armed conflict. In July 2009, the Government welcomed the backing for such a war powers resolution from a Joint Committee of both Houses. But nothing happened before last May’s general election.

Did the vote on Libya come too late?

Mr Cameron has followed the spirit of this approach in giving MPs an early opportunity to vote on the Libyan commitment, though a handful of members argued that Monday was too late and the vote should have been on Friday or Saturday before, not after, the first military action. A similar complaint has been made by some Democratic Congressmen in the USA that President Obama has acted unconstitutionally in not seeking formal approval first. Mr Cameron has been assiduous in keeping the Commons informed and, unusually for a Prime Minister, stayed to listen to much of the Commons debate on Monday. A crucial difference from 2003 is, of course, that military action to defend the civilian population and to enforce a no-fly zone is specifically sanctioned under United Nations Security Council resolution 1973.  ( That does not permit the specific targeting of Muammar Gaddafi, as Sir David Richards, Chief of the Defence Staff, has rightly argued.) So there has been no repeat of the 2003 controversy over the Attorney General’s changing legal advice ahead of the war.  At present, the legal position is clear-cut. Mr Cameron has now published the full legal advice of Dominic Grieve, the Attorney General, which the Cabinet saw last Friday. But he did publish a six paragraph summary of the legal basis for deployment of UK forces, in effect a commentary on the UN resolution. The other crucial question is defining the limits of the military operation. That is as much a political, as a legal, question- as has been reflected in some of the ambiguous answers given by ministers on the longer-term objectives of involvement. Regime change may be a political objective, but it is not a military one under the UN resolution and the legal advice. Ensuring clarity here requires continuous, vigorous scrutiny by Parliament. In response to fears over mission creep, William Hague said in the debate  that ‘if the Government ever fundamentally change the nature of the mission..... we will return to the House for a further debate to consult it again’. Moreover, Mr Hague also went well beyond the previous government in promising that ‘we will enshrine in law for the future the necessity of consulting Parliament on military action’.  Watch the details—it all depends what is meant by ‘consulting Parliament’.

Publisher
Institute for Government

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